For a DUI or DWI in New Jersey, the Accused Must Be Observed for Twenty Minutes Uninterrupted

State v. Bruno

Docket No. A-1144-19

Decided June 29, 2021

Submitted by New Jersey DWI Lawyer, Jeffrey Hark.

In a recent unpublished decision the Appellate Division of New Jersey affirmed defendant’s guilty plea to a driving while intoxicated (DWI) after defendant challenged the twenty-minute observation period prior to the Alcotest breathalyzer.

In Bruno, as part of a conditional plea, defendant admitted to consuming eight twelve-ounce cans of beer over a five-hour period and blew a 0.17 blood alcohol on the Alcotest. Defendant challenged the admissibility of the Alcotest breathalyzer results, arguing that he was not properly observed for twenty minutes, as required by law.  The police station had a recording of the room but the footage was destroyed and could not be produced.

At trial, rather than suppress this evidence, the municipal court judge made a negative inference regarding the twenty minute observation period.  Even with the negative inference, however, the municipal court judge still found the officer’s testimony credible in that defendant was properly observed for twenty minutes uninterrupted prior to using the Alcotest.

Defendant agreed to a plea deal but appealed the municipal court’s ruling to the Law Division regarding the destruction of the security footage. There, the Law Division undertook its own credibility findings and it too found the officer to be credible enough to overcome the negative inference that defendant was not properly overserved for twenty minutes.

Defendant appealed again to the Appellate Division, and the Court affirmed, finding the municipal court and the Law Division did not abuse their discretion in making their credibility findings and the record was adequately supported to overcome the negative inference.

For Driving Under the Influence (DUI) and Driving While Intoxicated (DWI) in New Jersey, the accused must be observed for twenty minutes uninterrupted to ensure that they do not regurgitate or ingest anything that would alter the results of the Alcotest. Failure to abide by this twenty minute observation period may result in a suppression of the results, or a negative inference, as outlined above.

If you or someone you know has been accused of DUI or DWI with other traffic offenses, there is likely an adequate defense.  Contact the experienced DUI / DWI attorneys at Hark & Hark today.

In recognition of these trying financial times due to COVID-19, we are reducing fees and working with clients to come up with manageable payment plans. Initial consultation is always free and we are available remotely.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing domestic violence charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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